Plaintiff, June McKee, brought this action against the defendant hotel to recover for injuries she alleged she sustained when her room in that hotel was invaded. The jury returned a verdict in her favor for $5,000 compensatory and $5,000 punitive damages. Judgment was entered on the verdict against the defendant for $10,000. The defendant appeals, contending that the district court below misconstrued the applicable New York State law.

Shortly after midnight of Saturday, September 4, 1954, plaintiff, who had reached New York that evening from Detroit, arrived at the Sheraton-Russell, registered, and was assigned a room with bath on the seventh floor.

She testified that when she retired on Sunday night, September 5, she locked her door and attached a "Do Not Disturb" sign to the outside door knob. About 6:45 A. M. on September 6, the next morning, she arose and went to her bathroom. Reentering her bedroom she discovered, crouched near the end of her bed, the bellboy who upon her arrival at the hotel had shown her to her room. Plaintiff was undressed and, attempting to cover herself, she tried to get the bellboy to leave. He remained, however, for some twelve to twenty minutes, making remarks which we regard as suggestive; and, near the end of his stay, he advanced upon her with hands outstretched. She finally managed to get him out of the room without his physically touching her, but shortly thereafter he returned and attempted to persuade her not to tell anyone what had happened. She suffered fright and shock, and she also proffered evidence tending to show that this occurrence had aggravated a preexisting urinary ailment.

The bellboy, who was called to the witness stand by the court, corroborated the plaintiff's story that he was in fact in her room that morning. He testified, however, that he was not on duty, that he believed Miss McKee had checked out and that her room was unoccupied, that he wanted to take a radio from there to the locker room for his own use, and that he was not in Miss McKee's room in the course of, or in furtherance of, the business of the hotel. He obtained the passkey he used from the hotel desk where room keys were readily accessible to the bellmen. He denied that he was in the room for as long a time as plaintiff claimed, and denied that he was other than respectful to her.

It appeared that the bellboy was then 21 years old, had been employed at the Sheraton-Russell for a year and a half, and for undisclosed reasons had been discharged within a week following the events in suit. It was also demonstrated that before he had been hired the hotel had made inquiries with respect to his fitness for the job, and that these inquiries had been satisfactorily answered. Also, it was shown that it was not customary for any bellboy to enter any hotel guest room at 6:45 A. M. for any hotel purpose, whether the room be occupied or unoccupied.

Federal jurisdiction in this case is based upon diversity of citizenship, and we must examine the issues before us in the light of the law of New York. These issues relate to the legal obligations imposed upon innkeepers by the innkeeper-guest relationship.

The first issue we consider deals with that portion of the district court's charge stating: "If you find that the employee of the defendant did in fact enter the plaintiff's room without her permission nor for any justifiable reason, such entry of the room is sufficient to make the defendant liable." Defendant took exception to this instruction. We are of the opinion that defendant was correct in so doing, for we believe the charge imposes too strict a duty upon the hotel. DeWolf v. Ford, 1908, 193 N.Y. 397, 86 N.E. 527, 21 L.R.A.,N.S., 860, appears to be the leading New York case defining the innkeeper-guest relationship. There the defendant hotel's servant entered the plaintiff's room without her consent and in vile and insulting language erroneously accused her of impropriety and immorality. In reversing a dismissal of the complaint the Court of Appeals said:

"One of the things which a guest for hire at a public inn has the right to insist upon is respectful and decent treatment at the hands of the innkeeper and his servants. That is an essential part of the contract, whether it is express or implied. This right of the guest necessarily implies an obligation on the part of the innkeeper that neither he nor his servants will abuse or insult the guest, or indulge in any conduct or speech that may unnecessarily bring upon him physical discomfort or distress of mind. The innkeeper, it is true, is not an insurer of the safety, convenience, or comfort of the guest. But the former is bound to exercise reasonable care that neither he nor his servants shall, by uncivil, harsh, or cruel treatment, destroy or minimize the comfort, convenience and peace which the latter would ordinarily enjoy if the inn were properly conducted; due allowance being always made for the grade of the inn and the character of the accommodation which it is designed to afford." 193 N.Y. 397, 404, 86 N.E. 527, 530.

In the case before us the district court's instruction did not impose the duty of "reasonable care" spelled out in DeWolf, but, instead, imposed a more rigorous one - that of an absolute duty upon the hotel to protect the guest from any improper disturbance. Hence the defendant is entitled to a new trial.

On the new trial the district court should make clear to the jury that the reasonable care which an innkeeper must exercise for the safety, convenience or comfort of its guest will vary with the grade and quality of the accommodations that the innkeeper offers. It would appear there is agreement that the defendant-hotel holds itself out to be a first-class residential hotel. That circumstance should properly be considered by the jury in determining whether defendant took the precautions that the operation of a first-class residential hotel requires. Thus, for instance, the jury may determine, upon adequate instruction, whether defendant, consistent with the standards of care demanded of such operation, took the proper precautions to safeguard its room keys, and if the jury should believe the defendant did not measure up to those standards it would impose liability upon it under the rule of DeWolf v. Ford.

However, defendant contends that it should not have to undergo a new trial because its liability must be predicated upon facts demonstrating that the bellboy acted within the scope of his employment and, accepting all of the plaintiff's testimony at face, there was no evidence introduced tending to show that the bellboy's conduct was in fact within the scope of his employment. For this reason, therefore, defendant claims the district court erred in denying defendant's motion to dismiss at the close of the plaintiff's case and in denying a renewal of that motion at the close of all the evidence. Likewise, after verdict, the defendant moved to set aside the verdict but did not move for judgment notwithstanding the verdict. In this posture we cannot order the court below to enter judgment for the defendant, even if we were to agree with defendant, for it failed to take the proper steps to give us that power. Johnson v. New York, N. H. & H. R. Co., 1952, 344 U.S. 48, 73 S. Ct. 125, 97 L. Ed. 77. Nevertheless we deal with this issue because it will be present at the new trial.

Is defendant liable for the bellboy's actions if these actions were not within the scope of his employment, and there is no showing that defendant ratified them, or no showing that the defendant was negligent in hiring or retaining him? The district court held that liability could be imposed. We agree. DeWolf v. Ford, supra, is not directly in point, for in that case the servant was acting within the scope of his employment, and the court had to decide nothing further. However, the New York Court of Appeals appears to have construed the rule stated therein as extending beyond that particular situation. In Stone v. William M. Eisen Co., 1916, 219 N.Y. 205, 114 N.E. 44, L.R.A. 1918B, 291, a young lady brought suit alleging that when she went to defendant to have braces fitted to her feet one of its servants while examining her attempted to have sexual intercourse with her.That act was clearly without the scope of the servant's employment, but the court affirmed an order denying defendant's ...

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